Since 2015, Section 115A of the Copyright Act 1968 (Cth) (Act) has provided rights holders with a mechanism to seek injunctive relief against internet service providers (ISPs) in order to block internet users from accessing certain sites. These are those that have the primary purpose of infringing, or facilitating the infringement of, copyright.
Following a review of section 115A and the Act’s site-blocking scheme, the Copyright Amendment (Online Infringement) Bill 2018 (Cth) (Bill) will now introduce changes that would see a broadening of section 115A’s current scope. This was passed by both Houses on 28 November 2018.
Amendments to the Copyright Act
Broadly, the Bill proposes to change the site-blocking provisions of the Act in five key ways, namely:
- ‘Primary effect’: Broadening the scope of the current ‘primary purpose’ threshold test to one that considers the ‘primary purpose or the primary effect’;
- Online location: Reversing the onus of proof in relation to the location of online service providers, so that it is presumed that the location is based outside of Australia
- Search engines: Bringing online search engine providers within the ambit of section 115A by allowing rights holders to seek injunctions against online search engine providers so that they do not provide search results referring to the infringing online location(s)
- Court orders: Making it clear that the Federal Court has the power to issue injunctions to block domain names, URLs and IP addresses that, although not included in the original proceeding, are providing access to an online location blocked by a previous site-blocking order. This is provided that the parties (ie rights holders on the one hand, and ISPs and/or online search engine providers on the other) agree to such an order in writing.
- Exemptions: Providing for the exemption of certain online search engine providers.
‘Primary purpose or the primary effect’
This is a development from the current ‘primary purpose’ test, which has been interpreted as being equally subjective and objective. As outlined in paragraph 40 of the revised explanatory memorandum to the Copyright Amendment (Online Infringement) Bill 2015 (Cth) (2015 REM):
The primary purpose test would direct the Court to consider the principal activity for which the online location exists and the principal intention of users of that online location. Purpose may be distinct from motive. An online location may have the ‘primary purpose’ of infringing, or facilitating the infringement of copyright even if the operator of the location derives a commercial advantage or profit from the operation of the location. For example, where an online location has copyright infringement as the principal activity for which it exists and the principal reason for attracting visits to the online location, the fact that the motive or incentive of its operator is to draw profits from advertising revenue does not mean that its primary purpose is to profit from advertising rather than to infringe copyright.
While the intention of this amendment is undoubtedly to broaden the scope of section 115A, the explanatory memorandum to the Bill states that only online locations found to be deliberately and flagrantly infringing will be caught, despite noting that intent will not be a conclusive factor.
When it comes to the requirement that the online location be situated outside of Australia, rights holders will no longer need to put on evidence to prove this fact. The purpose of this amendment is to lessen the burden for copyright owners. It also reflects other provisions in the Act that allow for rebuttable presumptions in relation to copyright ownership and subsistence.
The proposed amendments attempt to make clear that the Federal Court has the power to extend an existing injunction to cover further domain names, URLs and IP addresses that provide access to an infringing online location, where such domain names, URLs and IP addresses are discovered after the original injunction is ordered.
These extensions will only apply with the written consent of all parties (ie the rights holders, ISPs and/or online search engine providers).
In order to ensure that the proposed broadened scope of section 115A only applies to major internet search operators (eg Google, Bing and Yahoo!), the Bill empowers the Minister to table a schedule of either individual, or classes of, online search engine providers that are to be exempt from section 115A.
It is envisaged (as outlined in the 2018 EM) that the following search engines would be exempt:
- smaller operators that do not have the same reach as Google or Yahoo!;
- entities that offer internal search functions (such as company intranets);
- educational, cultural and non-for-profit institutions that provide search services to employees, members or clients and are confined to discrete sites; and
- the National Library of Australia’s Trove search
Moving forward: ensuring that copyright laws are technologically relevant
Moving forward, site-blocking orders sought by rights holders will have a broader reach, reflective of the way in which consumers use the internet to access infringing sites. While judicial guidance may be required to formulate the type of injunction orders required for search engines to block search results, these amendments are seen by rights holders as a positive step towards ensuring that copyright laws are technologically relevant and capable of protecting their rights.